Random thoughts on the topics I spend most of my time thinking about: the steady deterioration of our freedom, the importance of the Bill of Rights, and the joys of travel.

Tuesday, May 18, 2010

Why 'Strict Constructionism'?

The recent candidacy of Ron Paul struck a chord with many Americans largely because of Dr Paul's strict adherence to Constitutional principles. He is known in the House of Representatives as 'Dr No' because his is often the one 'nay' vote when all others vote 'yea'. This was the case when the USA PATRIOT ACT came before the House. He is the only Representative to have voted against it. With hindsight, many have discovered what it was he found so objectionable.

So perhaps it's time, at last, to ask why following the Constitution strictly is so all-fired important.

Background – How Legislation Happens

In 1994 Newt Gingrich and the Republicans took control of Congress launching their 'Contract With America', promising to reduce the size of government, lessen the impact of regulations, and generally to make government more responsive to the needs of the people. Of the 10 clauses in their Contract With America, ten promises they made in exchange for our votes, they managed to deliver two. I don't want to discuss whether this was a good thing or a bad thing, but I want to use it as a lesson in legislating and the impact of the Constitution.

If we read the Constitution 'for comprehension' we get an unusual education. We come away from it with the notion that it's (supposed to be) very difficult to get legislation passed. First, you need majorities in both houses, and then you need the approval of the Executive. If the Executive disapproves (vetoes the bill) it takes 2/3rds of both houses to override the veto. That's a lot.

It's very much simpler to prevent things from happening, and it's clear that's what the Framers intended. To prevent things from happening you only need a majority in one house. If the Executive agrees that something ought not happen, you only need 1/3rd control of one house to sustain the veto. Like jiu-jitsu, it takes less than half the effort to halt the process as it does to push it forward. This is not an accident, and it's in large measure why the Contract With America was a failure.

When the Senate was appointed by the state legislatures, there were three clearly distinct factions, and getting legislation passed required substantial agreement among all of them or the overwhelming agreement of two. The intent of the Framers was that only laws which were both good for the people and good for the states would ever see daylight.

In 2006 the Democrats swept into power in mid-term elections largely on their promise to end the War in Iraq. Once in power, however, they had a long series of excuses as to why they couldn't manage it. As we have seen above, all of that is bogus, because to stop a war you merely have to cut funding. That is, you need to prevent an appropriation bill going forward. The Democrats had slim majorities in both houses of Congress and yet couldn't manage to stop the minority Republicans ramming through a supplemental appropriation adequate to continue the war.

The American people, largely unaware of what's in the Constitution, gritted their teeth and muttered "Curses ! Foiled again !" (Oh, did I mis-spell 'fooled'?)

Why there are so many laws

You don't have to be in Mensa to figure out that something has gone seriously wrong with that plan. We now have laws that are clearly no good for the states, and laws that are clearly no good for the people. 'NAFTA' jumps to mind as a single example that fits both: it imposes draconian restrictions on the states' ability to police their own territory and this in turn causes increased danger for motorists confronted by unsafe vehicles on their highways. It's good primarily for corporations and it's a continuation of America's long tradition of mercantilism – government action on behalf of 'big business'.

'Federalism' is the system in which power is divided between a central government and multiple states (in our case). The idea is that the central government has the ability to limit actions by the states and the states have the ability to limit actions by the central government due to each having powers in different arenas. Few Americans today understand this concept and consequently develop what the Framers would have considered 'bizarre' notions of the relationship between the states and the central government. Many people today assume that any law passed by Congress and signed by the President binds the states absolutely. Nothing could be further from the truth.

The problem is 'bi-partisanship'. That is the doctrine that 'laws are OK if almost everybody agrees they're OK'.

Article One, Section Eight of the Constitution disagrees. It says (among other things):

"Section 8 - Powers of Congress

The Congress shall have Power To ...

...legislate in seventeen fairly specific areas,

And ...

To make all Laws which shall be necessary and proper for carrying into Execution theforegoingPowers, and all other Powers vestedbythisConstitution in the Government of the United States, or in any Department or Officer thereof."

The plain wording of the Constitution says 'just these things and no others'. Not including a Department of Labor. Not including a Department of Energy. Not including a Department of Education. Not including a Department of Housing and Urban Development. Not including the FBI, or the CIA, or the ATF, or the FDA, or the FCC, and not including a host of other alphabet-soup agencies.

'But... but... but...' I can hear you protesting, 'no FAA ?? Do you want planes crashing in mid-air ??'. Well, no, and I suspect few people do, but if you think you need an FAA there's a method enshrined within the Constitution itself for fixing that; it's called 'the amendment process'. We have an FAA today without there being an amendment to legalize it because the American people looked at the problem and said "That sounds like a good idea; I won't object." We have a Federal Reserve System for the same reason. We have a Department of Education for the same reason. We have a myriad of departments and agencies for the same reason.

And none of them are legal, because Congress never had the authority to create them.

Instead, we were supposed to have 50 potentially-different solutions being tried more-or-less simultaneously, a technique known as 'massively-parallel trial-and-error'. In such an environment we would pretty soon understand that the Wisconsin Plan for Educational Improvement is a winner and the other 49 are something less, and that the Vermont Approach to Crime Reduction is the method we want to switch to next legislative session. That's federalism.

What we have, alas, is a one-size-fits-all solution mandated by the central government upon the states, none of whom any longer have the will to resist given that most of their citizens think that's the way the system works. In fact, it's the way the system is broken because it turns out that one size does not fit all.

In the rare case that a state actually challenges a federal law in federal court (does that sound like a stacked deck?) the federal court judges almost invariably side with the ones who pay the bill. They dance with the one 'at brung 'em. In the 2005 Raich v Gonzales, the Supreme Court had the opportunity to comment on the absolute absence of federal authority to deal with drugs of any sort and declined to do so.

Beyond that, there are those pesky amendments 1 through 10, known as The Bill of Rights. That is, in my opinion, a horrible name for them. It gives people the impression that those amendments grant us some rights. That's not even approximately true. Those amendments are all, each and every one of them, restrictions on the powers of the central government. "Congress shall make no law..."; "...shall not be infringed..."; "No soldier shall..."; "...no warrants shall issue..."; "No person shall be held..."; "Excessive bail shall not be required..."; "...shall not be construed...". The ones which come closest to actually granting something are #6: "...the accused shall enjoy...", #7: "...the right ... shall be preserved...", and #10: "...reserved to the States...". The clear and unmistakeable conclusion from their language is that these are all rights which existed before there was a Bill of Rights and before there was a Constitution and which, presumably, will still be with us after there is no longer a Constitution.

It is, nevertheless, clear that we are now living in post-Constitutional America, and we did it to ourselves. We continually vote for the politician who promises to do the most (and to bring home the most loot). We never seem to question the assumption that the function of Congress is to pass more laws. In fact, we encourage politicians to pass more laws; we insist on bi-partisanship; we insist that our Congressfolk must be 'team players' so that they can get more done.

The result, among other things, is a tax code which, when printed, occupies eight feet of shelf space. No one has ever read the entire thing, not even the so-called experts at IRS. No one knows what it says. No one understands it, and no one can follow its labyrinthine ways, and everyone, even the Commissioner of the IRS, has violated some of its many conflicting provisions. We are all criminals, and we volunteered for it.

Why you should care

The Declaration of Independence tells us why governments exist: we are "...endowed ... with certain unalienable rights; ... that, to secure these rights, governments are instituted among men...". Everybody got that? Government exists to secure your rights. It goes further. It says that when the government is not doing that, we have "...the right ... to alter or abolish it...". That's pretty revolutionary talk.

The Constitution elaborates on this, especially in Article One, Section Eight that I mentioned earlier. Congress is there given certain powers and the presumption is that Congress will use those powers to fulfill the proper function of government, that is: securing the rights of we, the people.

That's not happening. Every day Congress passes another law that violates that principle. They've even passed laws (like the USA PATRIOT ACT) which violate our rights wholesale, and people shrug it off as if that's the way things ought to be.

But we know, deep down, that something is wrong. The government acts as if we, the people, exist to fulfill the needs of government. When we open our eyes and read our own history we have no trouble understanding that, to the contrary, government exists to fulfill our needs.

So... how did we get here? And where, exactly, is 'here'?

'Here' is post-Constitutional America. President George W Bush is reported to have snapped at one of his aides who warned him of a potentially-unConstitutional act: "Don't keep throwing the Constitution in my face. It's just a god-damned piece of paper." There was a suitably-short period of outrage among those who think the Constitution is not, in fact, "just a god-damned piece of paper". Since they were in the minority, their outrage never amounted to much in a country which is now, de facto if not de jure, a democracy; where the bulk of the populace thinks the Bill of Rights can be repealed by a popular vote.

We're here because we've stopped understanding the Constitution. We don't understand it because it's not much taught in the schools these days, and that's at least understandable. Jefferson warned us: "If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be." Part of that education must be to know whence we came and whither we go. We cannot rely on schools which are run by the government to teach our children that the government is the servant. We might as well expect Catholic schools to teach their students that the Pope is just as fallible as anyone else. Fuhgeddaboudit.

Instead, we must educate ourselves about what the Constitution says, and even more importantly, what it doesn't say. And we have to teach others. Whenever someone says "There oughta be a law !" we should ask ourselves whether, in fact, there really ought to be a law and what it will cost us, not simply in money, but in personal liberty, if there is such a law. And maybe we should stand up and say, in reply, no, there oughtn't be a law.

Lyndon Johnson famously said: "You do not examine legislation in light of the benefits it will convey if properly administered, but in light of the wrongs it would do and the harms it would cause if improperly administered." That's something we need to keep constantly in mind. And we need to make sure nobody else forgets, either.

What you can do about it

September 17th is 'Constitution Day'. It commemorates the day in 1787 when 39 convention delegates affixed their signatures to the Constitution. Exiting the building, Benjamin Franklin was accosted by a woman who demanded: "Dr Franklin, what sort of government have you given us?" Franklin responded: "A republic, madam, if you can keep it."

What can we do to keep it?

Most of us limit our 'public politics' to writing letters to the editor, and that's a great way to raise awareness of this magnificent document among our communities. So, first, speak up.

I won't suggest volunteering to address an American History class at your local school, since most of us who don't have stage fright might still feel some trepidation about taking on a subject as vast as The Constitution. We do, however, have to put ourselves in the position of being able to do that if we're to be effective spokesfolk for our way of life. So, second, educate yourself. Read the Constitution 'for comprehension'. Learn what our government should be doing, and what's it's doing that it shouldn't be doing. And complain. The squeaky wheel gets the grease.

Third, and most importantly, hold your legislators' feet to the fire. Don't ask them "what are you going to do in Washington?" Ask them "what unconstitutional laws are you going to work to get repealed if we send you?" All day long our legislators hear "Gimme, gimme, gimme". It's only natural for them to concentrate on the actions so many of their constitutents demand. We have to change that if we're going to keep our republic and our Constitution.

Appendix A

I spoke earlier about the FAA and that it has no Constitutional cachet.

Years ago I approached an official of the Libertarian Party and challenged him: "OK, the FAA is unconstitutional, but isn't this something the government has to do to keep planes from falling out of the air?"

He paused a moment to formulate an answer and then asked in return: "If the President went on TV tonight and announced that at the end of the month/year/fiscal year/whatever the FAA would cease to exist, what would happen?"

I must have had a dumb-founded look on my face, so he continued:

"At 9am on the following Monday morning, the CEOs of Continental, United, Delta, USAir, Southwest, and several other carriers would all be in the same conference room to discuss what they were going to do without a government-run FAA. And within the week they would announce the formation of 'FAA, Inc', and every Air Traffic Controller from Bangor to San Diego would have received a job offer with the new company, because Delta doesn't want their airplanes colliding with United's airplanes any more than you do."

The point he wanted to make was that services, if they're something valuable, will be provided by the free market. How do you know if they're 'valuable'? If people are willing to pay for the service, they're valuable, and someone will step forward to supply the service for a fee. If government doesn't structure a monopoly, there will even be competition by vendors vying to provide the service to you and to collect your money.

What if people aren't willing to pay for the service? In that case, it's fair to ask whether that service actually has value. Under the current regime, someone in Washington decides that some service, foreign aid perhaps, has value, and taxes you for it whether you agree with their assessment or not. This is the heart of the old saw that 'foreign aid is an excellent method for transferring wealth from poor people in rich countries to rich people in poor countries'.

Most government 'services' would quickly go out of business if they were forced to rely on voluntary contributions from people who couldn't live without that benefit. It has even been suggested that all of government be funded strictly on voluntary contributions.

I wonder what size government that would get us?

Appendix B

Government isn't very good at doing most things.

The Framers of the Constitution understood the nature of bureaucracy. It was little different then than it is today. The basic problem is one of 'mode'. We have this tendency to engage in mono-modal problem-solving. We have a problem, so we all gather together and discuss it and take a vote, and whatever 51% of us decide is what we all do. Typically, if the problem is big enough, we'll hand it over to some bureaucrat for solving and give that bureaucrat a budget.

Well, if you give me a big budget and a staff and tell me to solve some problem, I absolutely guarantee that it will not be solved for several years... possibly never... because the instant I solve that problem, I'm out of a job. It's my civic duty to keep unemployment low.

The Framers understood this, and so they handed over to the central government a very small menu of tasks, and they are all (or almost all) tasks that truly require centralized control or coordination or both. So the Congress has the power to establish post offices and post roads, but not the power to run them. The federal government is not assigned responsibility for delivering the mail, just for saying where the depots will be and how to get from one to the other.

Big-government fanatics are fond of pointing to the Interstate Highway System as an example of a task that isn't in the Constitution but surely needed to be done. Until just recently the contrary arguments were strained and relied primarily on philosophy. We now have the perfect countervailing argument.

I-35W crosses the Mississippi River in Minneapolis MN, or did. On August 1st, 2007 it collapsed into the river killing 13 and injuring 111. The cause was faulty maintenance. Engineering reports over the course of at least four years indicated advancing problems with the bridge. Oddly, these problems were not addressed in a timely fashion. The State of Minnesota, the bridge's owner, is not capable of being sued because of the doctrine of 'sovereign immunity'.

Had that bridge been privately-owned, can anyone seriously assert that those engineering reports would have been ignored? Or that, having been ignored, the private owner could hide behind sovereign immunity? Because the latter is impossible, the former is implausible. There would still be a bridge over the Mississippi at Minneapolis. Yes, it would cost money to cross it, but which would you rather: a bridge toll or a death toll?

About Me

Radical Rothbardian libertarian. I believe that government is (at best) an unnecessary evil and that our government is not at its best (and hasn't been since around 1798).
I love to travel but have a hard time coping with the aiport Heimatsicherheitdienst.